Judgment rendered June 24, 2020. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 53,526-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
RADRAREAN TREMELL WEST Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 359062
Honorable Katherine Dorroh, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Mary Constance Hanes
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
JASON W. WALTMAN NANCY BERGER-SCHNEIDER TOMMY J. JOHNSON Assistant District Attorneys
Before PITMAN, GARRETT, and McCALLUM, JJ. GARRETT, J.
Following a jury trial, the defendant, Radrarean Tremell West, was
convicted of the following offenses and sentenced as set forth below: count
one, illegal carrying of weapons while in possession of a controlled
dangerous substance (“CDS”), eight years at hard labor without benefit of
probation, parole, or suspension of sentence, and a $2,500 fine; count three,
resisting an officer, six months in the parish jail; count four, domestic abuse
aggravated assault with child endangerment, three years at hard labor, and a
$2,500 fine; count five, aggravated battery, eight years at hard labor; and
count six, second offense domestic abuse battery with child endangerment,
six months in the parish jail, with 14 days to be served without probation,
parole, or suspension of sentence, and a fine of $750. Prior to trial, the
defendant had pled guilty to count two, possession of a firearm by a
convicted felon, for which he was sentenced to 12 years at hard labor
without benefit of probation, parole, or suspension of sentence, and a $2,500
fine. The trial court ordered that the sentences be served concurrently. The
defendant appeals as excessive the sentences for illegal carrying of weapons
while in possession of a CDS, possession of a firearm by a convicted felon,
and aggravated battery. Pursuant to our error patent review, the defendant’s
sentence for domestic abuse aggravated assault with child endangerment is
amended to provide that the first two years of the three-year sentence are
imposed without benefit of probation, parole, or suspension of sentence. In
all other respects, we affirm the defendant’s convictions and sentences.
FACTS
On the evening of June 25, 2018, deputies from the Caddo Parish
Sheriff’s Office (“CPSO”) were called to the Grand Oaks apartment complex in north Caddo Parish for a domestic abuse incident involving the
defendant and his wife, Shatori Layton. The defendant and Ms. Layton had
been together for 10 years and married for four years. The couple and their
three young children lived in an apartment at the complex, where the
defendant was employed as a “make ready” tech who helped prepare
apartments for new occupants.
According to Ms. Layton’s statement to one of the responding
deputies, a verbal argument in their apartment had escalated into a physical
altercation, with the defendant hitting her on the side of her face with a
closed fist, threatening to kill her while brandishing a handgun, and hitting
her on the back of the head with the handgun. She had fled with their infant
son to the apartment of the complex manager, who was also a close friend.
The manager called 911. Because the call involved a firearm, several
deputies responded to the call. When ordered to put his hands up and come
forward, the defendant attempted to run past the officers while exiting his
apartment. However, the officers were able to force the defendant to the
ground and handcuff him. During the struggle, the defendant repeatedly
reached for his pocket. After he was handcuffed, a search revealed a .45
caliber Ruger handgun in his front left pocket. The weapon had a fully
loaded extended magazine and a round in the chamber. The defendant was
also found to be in possession of suspected marijuana and Ecstasy pills.1
On August 24, 2018, the defendant was charged by bill of information
with domestic abuse aggravated assault with child endangerment, illegal
carrying of weapons while in possession of a CDS, possession with intent to
1 Subsequent laboratory analysis revealed that the pills actually contained methamphetamine. 2 distribute Schedule II CDS, possession of a firearm or carrying a concealed
weapon by a convicted felon, resisting a police officer with force or
violence, and domestic abuse battery, second offense, with child
endangerment. Three amended bills of information were filed, primarily
making changes as to the drugs involved. Eventually, a charge of
aggravated battery was added, and the charge of possession with intent to
distribute Schedule II CDS was dropped.
On July 22, 2019, the matter came up for jury trial. Prior to the
commencement of trial, the defendant pled guilty to the charge of possession
of a firearm by a convicted felon, his previous felony being a 2009
conviction for possession of Schedule I CDS with intent to distribute. There
was no agreement as to sentencing, which was deferred pending the outcome
of the trial. He then proceeded to trial on the remaining five charges.
The apartment complex manager testified that Ms. Layton came to her
apartment with her infant and told her that she and the defendant had gotten
into an argument. Ms. Layton further said that she had left their apartment
because she was scared due to the defendant having a gun. This also
frightened the manager, who worried about someone on the property being
hurt. When she called 911, she informed the dispatcher of the gun’s
presence.
The state presented the testimony of five deputies who responded to
the domestic abuse call. Deputy John Berry was the first officer to respond,
followed almost immediately by Deputy Nathan Wesson. The apartment
manager met them in the parking lot and pointed out the defendant’s
apartment. They went to the apartment, where they made contact with the
defendant, instructing him to come to them with his hands up. When the 3 defendant got close to them, he dropped his arms and tried to run past them.
A struggle ensued as the deputies attempted to gain control of the defendant
and handcuff him. At this time, Deputies Magalene Boykin and Sean
Channell arrived and assisted in subduing the defendant. The defendant
repeatedly reached for his pocket as he struggled with the officers. After he
was handcuffed, Deputy Wesson testified that he located a gun in the front
left pocket of the defendant’s shorts. Deputies Boykin and Channell had to
carry the noncompliant defendant to the front of a patrol car because he went
limp; while carrying the defendant, Deputy Channell received a small cut on
his arm. Because the defendant was scratched up in the confrontation with
the officers, the fire department was called to examine him. They treated
him for his injuries on scene.
Deputy Eric Greene was one of the last officers to arrive. He
observed the defendant rolling on the ground and flailing his arms as the
other deputies attempted to handcuff him. He testified that the defendant
was wearing blue jeans and gym shorts. The loaded handgun was found in
one pocket of the defendant’s gym shorts, while $500 (five $100 bills) was
recovered from the other pocket. About 9.5 grams of a substance later
confirmed to be marijuana was found in the right pocket of his jeans. Five
and one-half pills were located in the change pocket of the jeans. Although
they were originally suspected to be Ecstasy pills, they were later found to
contain methamphetamine.
While fire department personnel examined the defendant, Deputy
Greene interviewed Ms. Layton. He described her as being visibly upset and
“in shock.” Deputy Berry, who was also present for the interview, testified
that she was timid and rattled. Her hair was in disarray, which she attributed 4 to her physical struggle with the defendant in their apartment. She told
Deputy Greene that she and the defendant had argued verbally and that he
then struck her with a closed fist beside her left eye. Thereafter, she picked
up their baby. While she was holding the child, the defendant took out his
handgun and started pointing it at her head, stating, “I hate you, bitch.
You’re going to die today.” He pointed the gun at her several times and
eventually struck her in the back of the head with it. Based upon this
account, Deputy Greene had the fire department personnel examine Ms.
Layton. Because she wore hair extensions, Deputy Greene said he could not
see a bump on the back of her head from the blow. Deputy Greene took
several photos of Ms. Layton to document her condition. They showed an
area of her head where hair extensions were missing. Photos of the
apartment were also taken; they showed pieces of her hair extensions on the
bathroom counter. Deputy Berry testified that he could see where the hair
had been detached from her head, and he recalled seeing pieces of hair
throughout the apartment.
LaShana Harris, a special victims unit investigator for the Caddo
Parish District Attorney’s Office, testified that she interviewed Ms. Layton
on June 28, 2018. A recording of the interview was played for the jury
during Ms. Layton’s testimony. During the interview, Ms. Layton described
the defendant as not being in “his right mind.” He accused her of having
had a man in their apartment and he began throwing clothes around. Ms.
Layton told Ms. Harris that the defendant pushed her and she pushed him
back. When she grabbed a kitchen knife to try to defend herself at one point,
the defendant slapped it out of her hand. He hit her on the left side of her
face with his fist. When she fled into their bedroom, she saw him pull the 5 gun from his pants. She shut the bedroom door, but he knocked it open and
tried to reach for his gun again. When he tripped and fell, she rushed past
him, got the baby from his high chair, and ran to the front door of the
apartment. However, the defendant beat her to the door, which he shut and
locked. She sat down on the sofa with the baby in her lap as he stood in
front of her with the gun. She pleaded with him to let her put the baby down
if he was going to kill her. He pulled her hair with his right hand while
holding the gun in his left hand. With all her strength, she pushed him and
then fled the apartment with the baby.
At trial, Ms. Layton testified that her husband left the apartment by
himself while she was preparing dinner. When he returned, his eyes were
bigger and he seemed to have difficulty focusing. They exchanged words.
He accused her of having another man in the apartment and letting that man
out the back door. She testified that the back door could not be opened
without moving tires that were stacked near it. She recalled pushing and
fighting with the defendant but testified everything else was “a blur.” She
said she pushed him and he fell into their laundry baskets. She also said he
hit her at the back of her head but denied that he hit her with anything. She
also denied that any of her hair extensions were missing.
Ms. Layton testified that she had never seen the handgun before and
did not know where it came from. She said she first observed it in the
defendant’s waistband and that she became “very afraid” when she saw it.
She said that, holding her baby tightly, she pushed into the defendant
“almost like a football tackle,” knocking him down on a table, and then ran
out of the apartment with the baby. She said the defendant pulled out the
gun as she was leaving the apartment. 6 Ms. Layton said she was hysterical and very upset at her friend’s
apartment while they waited for the police to arrive. She did not recall
photos being taken of her; however, when shown the photos, she admitted
they accurately depicted her appearance. She said she did not recall telling
the police or the DA investigator that the defendant threatened her while
holding the gun. After the recording of her interview with the DA
investigator was played for the jury, Ms. Layton testified that she did not
“physically remember” everything she said in the statement, stating that she
didn’t know if her mind was “blocking it out.” Ms. Layton admitted that the
defendant had a prior domestic abuse battery conviction for an incident in
2016, in which she was the victim.
On cross-examination, Ms. Layton said she had known the defendant
since she was 16 years old and that she did not plan to divorce him. She
stated that she told the police, the DA investigator, and a defense
investigator different versions of what happened and that she did so to try to
help the defendant. She told the defense investigator that the information
she gave the police was false. She said that the defendant was not in his
“right mind” at the time of the incident and that he made “crazy” accusations
about her having another man in the apartment. She said she was surprised
by the presence of the gun because the defendant knew they were not
allowed in their household. She said she pushed the defendant first, but
asserted that she felt he was going to possibly do her harm. He fell in the
laundry basket but got up uninjured. Because it was “a traumatic
experience” she preferred to forget, she said she could not recall exactly
what happened “step by step” after that. She said she did not recall being
physically hit but remembered being pushed. She testified that she did not 7 recall the defendant hitting her with the gun. She also denied that he pointed
it at her head or the baby. On redirect-examination, Ms. Layton said she did
not recall Deputy Greene taking photos of her. She also said she did not
recall telling Deputy Greene that the defendant pistol-whipped her in the
head with the gun or pointed the gun at her while telling her she was going
to die that day.
A forensic chemist from the North Louisiana Crime Lab testified on
the state’s behalf that the substances found in the defendant’s pockets were
marijuana and methamphetamine. A probation officer from the CPSO
probation division testified that the defendant was placed on probation for a
six-month period on December 5, 2016, on a prior conviction for domestic
abuse battery. The supporting documentation admitted into evidence
indicated that, in the prior case, the defendant punched Ms. Layton in the
facial area with a closed fist. After the state rested its case, the defendant
elected not to testify or present any evidence.
The jury found the defendant guilty as charged of all counts except the
offense of resisting a police officer with force or violence. On this count, it
found him guilty of the responsive verdict of resisting an officer. The record
indicates that all verdicts were unanimous.
On August 14, 2019, the defendant filed a motion for post-verdict
judgment of acquittal. The motion was subsequently denied.
On August 27, 2019, the trial court sentenced the defendant to the
following terms of imprisonment which are the subjects of the instant
appeal: illegal carrying of weapons while in possession of a CDS, eight
years at hard labor without benefit of probation, parole, or suspension of
sentence, and a $2,500 fine; possession of a firearm by a convicted felon, 12 8 years at hard labor without benefit of probation, parole, or suspension of
sentence, and a $2,500 fine; and aggravated battery, eight years at hard
labor. Additionally, the trial court imposed the following sentences, none of
which the defendant contests in the instant appeal: resisting an officer, six
months in the parish jail; domestic abuse aggravated assault with child
endangerment, three years at hard labor, and a $2,500 fine; and domestic
abuse battery, second offense, with child endangerment, six months in the
parish jail, of which 14 days were to be served without probation, parole, or
suspension of sentence, and a fine of $750. The trial court directed the
defendant to pay court costs and $50 to the Indigent Defender Office on each
count. It also ordered that all of the sentences, including the fines, court
costs, and the fees to the Indigent Defender Office, be concurrent. The trial
court noted that aggravated battery and domestic abuse aggravated assault
were crimes of violence.
On September 16, 2019, the defendant filed a motion to reconsider his
sentences. The trial court issued a written ruling denying the motion on
December 3, 2019.
The defendant appealed, arguing that his three most severe sentences
were excessive.
EXCESSIVE SENTENCES
Law
An appellate court utilizes a two-pronged test in reviewing a sentence
for excessiveness. First, the record must show that the trial court took
cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge
is not required to list every aggravating or mitigating circumstance so long
as the record reflects that he adequately considered the guidelines of the 9 article. State v. Smith, 433 So. 2d 688 (La. 1983); State v. DeBerry, 50,501
(La. App. 2 Cir. 4/13/16), 194 So. 3d 657, writ denied, 16-0959 (La. 5/1/17),
219 So. 3d 332. The articulation of the factual basis for a sentence is the
goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its
provisions. State v. Lanclos, 419 So. 2d 475 (La. 1982); State v. DeBerry,
supra. The important elements which should be considered are the
defendant’s personal history (age, family ties, marital status, health,
employment record), prior criminal record, seriousness of the offense, and
the likelihood of rehabilitation. State v. Jones, 398 So. 2d 1049 (La. 1981);
State v. DeBerry, supra. There is no requirement that specific matters be
given any particular weight at sentencing. State v. DeBerry, supra; State v.
Shumaker, 41,547 (La. App. 2 Cir. 12/13/06), 945 So. 2d 277, writ denied,
07-0144 (La. 9/28/07), 964 So. 2d 351.
Second, the court must determine whether the sentence is
constitutionally excessive. A sentence violates La. Const. art. I, § 20, if it is
grossly out of proportion to the seriousness of the offense or nothing more
than a purposeless and needless infliction of pain and suffering. State v.
Dorthey, 623 So. 2d 1276 (La. 1993); State v. Bonanno, 384 So. 2d 355 (La.
1980). A sentence is considered grossly disproportionate if, when the crime
and punishment are viewed in light of the harm done to society, it shocks the
sense of justice. State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166;
State v. Meadows, 51,843 (La. App. 2 Cir. 1/10/18), 246 So. 3d 639, writ
denied, 18-0259 (La. 10/29/18), 254 So. 3d 1208.
As a general rule, maximum or near maximum sentences are reserved
for the worst offenders and the worst offenses. State v. Meadows, supra.
The sentencing court has wide discretion in imposing a sentence within 10 statutory limits, and such a sentence will not be set aside as excessive in the
absence of manifest abuse of that discretion. State v. Williams, 03-3514 (La.
12/13/04), 893 So. 2d 7; State v. Duncan, 47,697 (La. App. 2 Cir. 1/16/13),
109 So. 3d 921, writ denied, 13-0324 (La. 9/13/13), 120 So. 3d 280. The
trial court is in the best position to consider the aggravating and mitigating
circumstances of a particular case and, therefore, is given broad discretion in
sentencing. State v. Cook, 95-2784 (La. 5/31/96), 674 So. 2d 957, cert.
denied, 519 U.S. 1043, 117 S. Ct. 615, 136 L. Ed. 2d 539 (1996); State v.
Jackson, 51,575 (La. App. 2 Cir. 9/27/17), 244 So. 3d 764.
Aggravated battery has a sentencing range of imprisonment with or
without hard labor for not more than 10 years, a fine of not more than
$5,000, or both. La. R.S. 14:34(B).
The offense of illegal carrying of weapons while in possession of a
CDS (except the possession of 14 grams or less of marijuana) is punishable
by a fine of not more than $10,000 and imprisonment at hard labor for not
less than five nor more than 10 years without the benefit of probation,
parole, or suspension of sentence. See La. R.S. 14:95(E).
The defendant was charged with and pled guilty to possession of a
firearm by a convicted felon under La. R.S. 14:95.1, due to his prior
conviction for possession of Schedule I CDS with intent to distribute. This
offense carries a sentencing range of imprisonment at hard labor for not less
than five nor more than 20 years without the benefit of probation, parole, or
suspension of sentence, and a fine of not less than $1,000 nor more than
$5,000.
11 DISCUSSION
In contesting his three most severe sentences, the defendant contends
that the trial court failed to consider mitigating factors, such as the defendant
being under the influence of drugs at the time of the offenses and the
victim’s provocation of the defendant when she escalated a verbal argument
by pushing him. He also criticizes the trial court for ignoring the wishes of
the victim, who had forgiven him and did not want him to be punished
harshly, and for its efforts to “protect” the victim by imposing lengthy
sentences. The state maintains that the trial court properly applied La.
C. Cr. P. art. 894.1 and that it did not abuse its discretion in imposing mid-
range sentences.
Our review of the record reveals that the trial court fully complied
with the provisions of La. C. Cr. P. art. 894.1 in sentencing the defendant. It
thoroughly considered all of the relevant factors and carefully articulated its
reasons for imposition of the defendant’s sentences, which were ordered to
be served concurrently. The trial court found all three provisions of La.
C. Cr. P. art. 894.1(A) to be applicable: (1) there was an undue risk that
during the period of a suspended sentence or probation the defendant would
commit another crime; (2) the defendant was in need of correctional
treatment or a custodial environment that could be provided most effectively
by his commitment to an institution; and (3) a lesser sentence would
deprecate the seriousness of the defendant’s crimes. The trial court found
several of the aggravating factors enumerated in La. C. Cr. P. art. 894.1(B)
to be present: (B)(1) the defendant’s conduct during the commission of the
offense manifested deliberate cruelty to the victim; (B)(5) the defendant
knowingly created a risk of death or great bodily harm to more than one 12 person; (B)(6) the defendant used threats or actual violence in the
commission of the offense; (B)(10) the defendant used a dangerous weapon
in the commission of the offense; and (B)(19) the defendant used a firearm
or other dangerous weapon while committing or attempting to commit an
offense which has, as an element, the use, attempted use, or threatened use
of physical force against the person or property of another, and which by its
very nature, involves a substantial risk that physical force may be used in the
course of committing the offense. In mitigation, the trial court noted the
victim’s efforts to minimize the events and her need for the defendant’s
financial support in raising their three children. However, in view of the fact
that this was the second domestic violence incident involving the couple, the
trial court expressed concern for the victim’s safety.
Of the six offenses for which the defendant was sentenced, the one
with the highest exposure was the crime of possession of a firearm by a
convicted felon. Before trial, the defendant pled guilty to this offense, which
had a mandatory minimum sentence of five years at hard labor without the
benefit of probation, parole, or suspension of sentence and a potential
maximum sentence of 20 years at hard labor without the benefit of
probation, parole, or suspension of sentence. The trial court imposed a mid-
range sentence of 12 years without the benefit of probation, parole, or
suspension of sentence. The defendant, a convicted drug felon, was not only
in possession of the handgun, but he also used it to brutalize and terrorize his
wife, who was holding their infant child in her arms. He later tried
repeatedly to reach for the fully loaded weapon while struggling with the
police. In view of these facts, we do not find this sentence to be excessive.
13 The other gun-related charge, illegal carrying of weapons while in
possession of a CDS, likewise had a mandatory minimum sentence of five
years at hard labor without the benefit of probation, parole, or suspension of
sentence; the maximum sentence was 10 years at hard labor without the
benefit of probation, parole, or suspension of sentence. The trial court
imposed a sentence of eight years; given the mandatory minimum sentence,
this term was in the middle of its discretionary range. Under the facts of the
instant case, which involved the defendant carrying a gun with a fully loaded
extended magazine and a round in the chamber while possessing
methamphetamine and struggling with police officers who were attempting
to arrest him for domestic abuse, we do not find this sentence to be
excessive.
As to the offense of aggravated battery, the sentencing range was up
to 10 years, with or without hard labor. The trial court imposed a near
maximum sentence of eight years at hard labor. The evidence presented at
trial and accepted by the jury demonstrated that, during a terrifying and
violent incident, the defendant viciously attacked his wife and, at one point,
struck her in the head with a handgun. Despite her forgiveness of the
defendant, the fact remains that his actions during the instant altercation
posed a substantial danger to his wife, who had already been the victim of
physical abuse by the defendant which resulted in his prior conviction.2 The
facts of the instant case fully support this sentence.
2 The evidence admitted at trial pertaining to this prior conviction showed that the trial judge who presided over the defendant’s trial and sentenced him in the instant matter was the same judge who accepted his 2016 guilty plea. As a result, the trial court was familiar with the defendant and aware that he had not benefitted from the sentencing leniency shown to him in the previous case.
14 This assignment of error lacks merit.
ERROR PATENT
As to count two, possession of a firearm by a convicted felon, when
the trial court imposed sentence, it failed to specify that the 12-year term of
imprisonment was to be served “at hard labor.” However, this error is
harmless and self-correcting because La. R.S. 14:95.1 is a mandatory felony,
requiring any sentence to be served at hard labor. State v. Foster, 50,535
(La. App. 2 Cir. 4/13/16), 194 So. 3d 674. We further note that the minutes
fail to reflect that the sentence for this offense was properly imposed without
benefit of probation, parole, or suspension of sentence and that the trial court
also imposed a $2,500 fine. Accordingly, the trial court is instructed to
correct these errors in the minutes, as the transcript controls over the minutes
when there is a conflict. State v. Lynch, 441 So. 2d 732 (La. 1983); State v.
Bell, 51,312 (La. App. 2 Cir. 5/17/17), 222 So. 3d 79.
As to count four, domestic abuse aggravated assault with child
endangerment, the sentence of three years at hard labor was illegally lenient
in that it failed to impose the mandatory minimum sentence by restricting
benefits for the first two years. Accordingly, this sentence is hereby
amended, in compliance with La. R.S. 14:37.7(D), to reflect that the first
two years are imposed without benefit of probation, parole, or suspension of
sentence, and, as amended, the sentence is affirmed.3
3 Domestic abuse aggravated assault carries a penalty of imprisonment at hard labor for not less than one year nor more than five years and a fine of not more than $5,000. La. R.S. 14:37.7(C). Under the Domestic Abuse Aggravated Assault Child Endangerment Law, when the state additionally proves that a minor child 13 years of age or younger was present at the residence or any other scene at the time of the commission of the offense, the mandatory minimum sentence imposed by the court shall be two years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. La. R.S. 14:37.7(D).
15 As to count six, domestic abuse battery, second offense, with child
endangerment, the minutes incorrectly state that “[t]he court ordered all but
fourteen (14) days of said sentence suspended.”4 The trial court is directed
to correct the minutes accordingly.
CONCLUSION
The defendant’s sentence for domestic abuse aggravated assault with
child endangerment is amended to provide that the first two years of this
three-year sentence are imposed without benefit of probation, parole, or
suspension of sentence and, as amended, is affirmed. In all other respects,
the defendant’s convictions and sentences are affirmed.
Furthermore, the trial court is directed to correct the minutes for
counts two, four, and six, as specified above.
SENTENCE FOR DOMESTIC ABUSE AGGRAVATED ASSAULT WITH CHILD ENDANGERMENT AMENDED AND, AS AMENDED, AFFIRMED; AFFIRMED IN ALL OTHER RESPECTS.
4 Second offense of domestic abuse battery is punishable by a fine of between $750 and $1,000, and imprisonment, with or without hard labor, for not less than 60 days nor more than one year. At least 14 days of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence, and the offender shall be required to complete a court-monitored domestic abuse intervention program. La. R.S. 14:35.3(D). At the time of the offense on June 25, 2018, the statute also provided that, under the Domestic Abuse Child Endangerment Law, when the state additionally proved that a minor child 13 years of age or younger was present at the residence or any other scene at the time of the commission of the offense, the execution of the minimum mandatory sentence provided by Subsection D shall not be suspended. See La. R.S. 14:35.3(I). 16